1. This was a suit by Mt. Anto for recovery of certain arrears of maintenance allowance by enforcement of a charge alleged to have been created under a hypothecation bond executed on behalf of her sons by the eldest of them. The contention raised on behalf of the defendants, who are subsequent transferees, was that the de facto guardian had no authority and power to hypothecate the property belonging to the minors and that accordingly no valid charge was created. The trial Court decreed the suit, but on appeal the lower appellate Court came to the conclusion that the deed of agreement under which the property in suit had been secured for the payment of the maintenance allowance was void and invalid and could not be enforced against the subsequent transferees to the extent of the shares of the defendants 2 to 5, who had been minors at the time. It appears that the property had originally belonged to one Shaikh Abu who, on his death left two daughters, a wife and five sons, and the property was divided as a result of what is called a panchayat among these people. A sale-deed for Rs. 5,000, was executed by the mother and daughters in favour of defendants 1 to 5, and the hypothecation bond was executed by the eldest son, on behalf of himself and his minor brothers agreeing to pay certain monthly allowances to the mother and creating a charge on the entire immoveable properties for that amount and there was a deed of relinquishment executed by the mother and the two daughters under which they gave up all interest in moveable and immoveable properties.
2. Subsequently on attaining majority the sons made two transfers on the 24th June 1921, and 27th October 1926, in favour of the contesting defendants. In this suit the sons admitted that maintenance allowances had been paid to the mother for six years, but said that they had remained outstanding for the last six years just before the suit. The lower appellate Court found that the transaction was a result of a family arrangement. It was therefore, contended on behalf of the plaintiff that this family arrangement was binding on the minor sons as well, as it was for their benefit and their interest. Two questions have been referred to this Full Bench by the Bench before which the case came up for disposal. They are as follows: (1) Can a transaction amounting to an alienation of an immoveable property belonging to a Mohammadan minor by the de facto guardian of the minor be ratified by the latter upon his attainment of majority? (2) Where the transaction has been ratified by him after he has attained majority, can it be subsequently challenged by him or by his transferees? Undoubtedly there was some conflict of opinion among the Indian High Courts prior to 1918; but a definite rule has been laid down by their Lordships of the Privy Council in their authoritative pronouncement in Imambandi v. Haji Mutsaddi 1918 16 ALJ 800. Their Lordships considered it necessary to lay down such a definite rule in view of the conflict of opinion that had prevailed. Emphasis was laid on the previous ruling of their Lordships of the Privy Council in Matadin v. Ahmad Ali (1912) 39 IA 49, where Lord Robson had observed:
It is urged on behalf of the appellant that the elder brothers were de facto guardians of the respondent, and, as such, were entitled to sell his property, provided that the sale was in order to pay his debts and was therefore, necessary in his interest. It is difficult to see how the situation of an unauthorized guardian is bettered by describing him as a de facto' guardian. He may, by his 'de faeto' guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it.
3. Their Lordships after an exhaustive review of several cases considered it necessary to examine the case in Ayderman Kutti v. Syed Ali 1914 37 Mad 514. The learned Judges of the Madras High Court had held (1) as regards the powers of guardians, de jure as well as de facto, that the Mohammadan law recognizes no distinction as to the nature or kind of property, namely, whether it is immoveable or moveable, (2) that in substance the powers of an unauthorized person, who has charge of an infant, are coextensive with those of a lawfully constituted guardian, except in so far that the acts of the former are subject to considerations of necessity or benefit to the infant; and (3) that dealings by a de facto guardian are neither void nor are voidable but are suspended until the minor on attaining majority exercises his option of either ratifying the transaction or disavowing it. As regards the first proposition their Lordships held that the Mohammedan law, for obvious reasons, makes a distinction, and a sharp distinction, between 'goods and chattels' and immoveable property with regard to the powers of dealing by guardians. As regard* the second proposition their Lordships considered that the conclusion of the learned Judges of the Madras High Court would wipe out one of the most important safeguards provided by the Mohammedan law for the protection of the interest of infants. Dealing with the third proposition, their Lordships examined the text of the Hedayah and the Fatwa-i-Alamgiri and came to the conclusion that the Hanafi doctrine relating to a sale by an unauthorised person remaining dependent on the sanction of the owners refers to a case where such owner is sui juris possessed of the capacity to give the necessary sanction to make the transaction operative, and that they did not find any reference in these doctrines relating to fazuli sales, so far as they appear in the Hedayah or the Fatwa-i-Alamgiri, to dealings with the property of minors by persons who happen to have charge of the infants and their property, in other words, the de facto guardians. In their Lordships' opinion the doctrine about fazuli sales appears clearly to be based on the analogy of an agent who acts in a particular matter without authority, but whose act is subsequently adopted or ratified by the principal which has the effect of validating it from its inception. The idea of agency in relation to an infant is as foreign, their Lordships conceived, to Mahomedan law as to every other system. Their Lordships held that
under the Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, and who may therefore be conveniently called a de facto guardian, has no power to convey to another any right or interest in immoveable property which the transferees can endorse against the infant; nor can such transferee, if let into possession of the property under such unauthorized transfer, resist an action in ejectment on behalf of the infant as a trespasser.
4. It seems therefore that this case is a clear authority for the proposition that a person who is merely a de facto guardian has no power or authority whatsoever to transfer any right or interest in immoveable property belonging to an infant. This view has been recently confirmed by their Lordships in Mohammad Ejaz Husain v. Mohammad Iftikhar Husain 1932 ALJ 199. In that case an agreement of reference to arbitration had been signed by the mother of certain minors. The matter was referred to arbitration and an award was delivered under which a certain partition was effected and in consequence certain mortgage deeds were allotted to the share of the minors. A suit was brought on these mortgages by an adult son after attaining majority for himself and on behalf of his three brothers, including one Ejaz Husain, who were minors at the time. A preliminary decree was obtained and then an application for a decree absolute was filed which was signed by Ejaz Husain as well who had by that time attained majority. In that way Ejaz Husain accepted the validity of the mortgage deeds sued upon which had been allotted to the sons' share under the award which was the result of an agreement of reference to arbitration signed by the de facto guardian, the mother only. Their Lordships overruled the view taken by the Indian High Court and held that this was not a sufficient ground to prevent Ejaz Husain from maintaining his suit for recovery of the property, in spite of the award which had been delivered. Their Lordships approving of the previous pronouncement in Imambandi v. Haji Mutsaddi 1918 16 ALJ 800, again laid down that under the Mahomedan law the mother as the de facto guardian has no authority to enter into an agreement of reference to arbitration on behalf of her minor sons so as to make the award binding on them as to their share in the immoveable property, nor has she power or authority to enter into an arrangement whereby the minors' share in the immoveable property of their father would be affected. In view of the fact that at the time of the said agreement she was not their legal guardian, she cannot be clothed with the necessary authority by calling the transaction a family arrangement. The learned Counsel for the plaintiff has relied strongly on an earlier case decided by their Lordships of the Privy Council, namely the case in Kali Dutt Jha v. Abdul Ali (1889) 16 Cal 627. That however was a case which arose before the coming into force of the Transfer of Property Act under which a conveyance of property worth more than Rs. 100 is required to be effected by means of a registered document executed by the true owner as transferor. Furthermore, there the guardian was the father of the minors, who, under the Mahomedan law, was the natural guardian of their property. Then again in that case the title of the minors to the property affected was a disputed one. As observed by their Lordships at p. 634:
It was not a case of a sale by a guardian of immoveable property of his ward, the title to which was not disputed, in which case a guardian is not at liberty to sell except under certain circumstances.
5. Furthermore, the transaction had been followed by a settlement made by the Collector. Accordingly their Lordships at p. 635 held that looking at the whole transaction, it was within the power of the guardian to make the sale. That case therefore is clearly distinguishable. The next point for consideration is whether it is open to the defendants transferees to raise the question of the invalidity of the hypothecation bond when the sons in the present suit are not raising any such question. It seems to us that if as laid, down by their Lordships of the Privy Council, the transaction was invalid from its very inception, it must be regarded as a void transfer and it must therefore be open to the subsequent transferees to set up its invalidity. Even in a case of alienation made by a manager of a joint Hindu family without legal necessity, it has been held by a Full Bench of this Court in Muhammad Muzamil-Ullah Khan v. Mithu Lal (1911) 33 All 783, that the invalidity of the transaction can be challenged by a subsequent transferee who has acquired interest in the property subsequent to the transfer. It seems to us that the rule laid down in that case would apply with equal, if not greater, force to a case where the de facto guardian of a minor has transferred property without any authority and power. It is unnecessary at this stage to express any opinion as to whether the mother can claim the benefit of any charge arising in her favour under Sections 120 and 55(4)(b), T.P. Act. Our answer to the first question referred to us is in the negative, as the transaction being void there is no question of ratification. The answer to the second question is that there can be no valid ratification and therefore there can be no estoppel on account of any such ratification.